from the the-times-we-live-in dept

We live in such ridiculous times. The ongoing silly narrative over supposed "political bias" by tech companies is causing all sorts of stupid follow on effects. For instance, Microsoft has now asked the Federal Election Commission for an advisory committee to state that offering its enhanced security features -- known as AccountGuard -- to any political campaign won't be deemed an unfair campaign contribution.

At first blush, this seems crazy that they would even need to do so, but it's really a product of the era that we live in. As you may recall, part of the issue around the whole Stormy Daniels / Donald Trump fight is the question of whether or not Trump lawyer Michael Cohen paying her off to stay quiet was an illegal campaign contribution because it was money paid specifically with the intent to aid a particular candidate (in this case, Trump) in his election campaign. Indeed, John Edwards got caught up in something quite similar in the 2008 campaign in having someone pay off his mistress to keep her quiet. And some have argued that the case against Trump is significantly stronger than the one against Edwards (in which he was indicted, but after an acquittal on one charge and a hung jury on the rest, the DOJ decided to drop the case).

But the key issue under election law is that they apply to payments (or in-kind contributions) "for the purpose of influencing an election." And, in Microsoft's case, it highlights in its letter that it is offering this security service to all candidates regardless of their party positions, and thus is not trying to influence elections one way or the other just to protect politicians from getting hacked.

Microsoft seeks confirmation that it will not be making prohibited in-kind contributions by
offering a package of enhanced online account security protections at no additional charge on a
nonpartisan basis to its election-sensitive customers, including but not limited to federal
candidates and national party committees, as described above.

It seems fairly obvious that this shouldn't even be an issue, but seeing as I'm not an expert in campaign finance, I reached out to former FEC chair Ann Ravel to see if I was missing something. She agreed that it was unlikely that Microsoft doing this would be seen as a violation of the law: "I am fairly confident that the FEC will conclude that Microsoft's proposed free service to "election sensitive" customers is permissible and not a prohibited in-kind contribution. Microsoft has made a good case that the service will not only be non-partisan but is in the company's own business interests, as well as their social obligation."

But another reason why Microsoft may have asked the FEC for an opinion is that lately we've been seeing more and more people claiming -- somewhat ridiculously -- that the silly debate over "political bias" on the platforms also involves illegal campaign contributions. I believe that this is intellectually dishonest partisan gamesmanship, simply trying (weakly) to take the claims about the Daniels' payment and play whataboutism on a grand scale.

Indeed, at least one candidate has even filed an FEC complaint over being banned by Twitter: and that's Paul Nehlen, who self-describes as a "pro-white candidate" and whose bigoted views are extreme enough that even Steve Bannon and others in the Trump camp have washed their hands of Nehlen.

Nehlen's FEC complaint was put together by lawyer Marc Randazza, who many of you are familiar with. Frankly, I believe this is not his best work. It relies heavily on the debunked article by Vice that incorrectly claimed that Twitter was "shadowbanning conservatives" based on their political views. The reality was that Twitter was not shadowbanning (it was merely having some users not show up in autocomplete) and it wasn't based on their political views. But the complaint doesn't acknowledge any of that, and insists that the article is evidence of Twitter trying to silence Nehlen's side of the "debate."

I raised some fairly skeptical questions about the complaint with Randazza over email, who responded that he believes that "Twitter and other platforms are attempting to "meddle in" elections" and stated, "Once they figure out who they can ban and who they can't, just watch for it." No offense to Marc, but that sounds fairly paranoid and devoid of any actual evidence. The discussions I've seen from platforms is that they actually are bending over backwards to appear "balanced" in how they handle political candidates from all across the political spectrum, perhaps to a ridiculous degree, out of fear of backlash from the supporters of those politicians. In Nehlen's case, his tweets were so far over the top and so far beyond what Twitter's terms of service allowed, that they finally got rid of him.

Again, due to my lack of experience with campaign finance laws, I ran the Nehlen complaint by former FEC Chair Ravel, who also felt that it stood little chance before the FEC, and suggested that the complaint misrepresented campaign finance law:

I don't believe that this issue comes within the FEC jurisdiction. The "debates" that the FEC has some responsibility to oversee, (11 CFR 110.13) has to do, clearly, with the "staging of debates." The code refers to whether or not a debate is a contribution or expenditure for a candidate, so related to the use of funds to defray "staging of candidate debates" not being a contribution. The FEC's only responsibility is to ensure that the structure if the debate is not to give priority to one party or individual. Consequently, the only issue that the FEC considers regarding a debate is whether or not pre-established objective criteria, to avoid real or apparent bias that is used to eliminate some candidates from the debate.

And while the Nehlen complaint bends over backwards to argue that "Twitter is the new debate platform," it seems like a huge stretch to argue that just because everyone shows up on Twitter to debate, that this is the same as Twitter "staging" a debate. Ravel also see some other massive hurdles to Nehlen's complaint:

Further, I think that the complaint would run afoul of the regulation that is still very much in existence (11 CFR 100.94) which says that uncompensated internet activity is not a contribution to influence a federal election. This includes the use of equipment or any form of communication on the internet. The only exception is as to those activities that are placed for a fee on a platform. So while this is not meant to apply to the platforms itself and its decisions about removing offending individuals from the platform, it certainly would be an impediment to the kind of relief that they are seeking.

In short, this seems unlikely to get very far. Though, given how long these things take, it may be years before we get official rulings on these issues. But, seeing as people are now trying to use campaign finance law as a weapon against anything related to politics, I guess we shouldn't be all that surprised to see Microsoft feel the need -- and you can almost hear the giant sigh coming from the legal team in Redmond -- to first seek an advisory ruling to make it clear that what they're doing in protecting candidates is okay.

Re: Re: Microsoft should just charge a low nominal fee

House on fire? Just drink some coffee and watch your children burn to death. What does it matter? Everyone is going to die some day.

Buy into the propaganda that this stuff is impossible to turn around. Just look at Germany! Overtaken by authoritarian control and they never recovered. No useful businesses, no good social programs, still authoritarian with no democratically elected officials.

Re: Re: Re: Re: Microsoft should just charge a low nominal fee

yes, and the same fight is going to happen again.

People are going to participate in the us vs them vote and nothing but the rhetoric will change. It's the same power hungry mad zealot politicians that have always sought power and control over people with lies and empty promises.

Re: Re: Re: Re: Re: Microsoft should just charge a low nominal fee

So you are saying there is no difference between any two politicians? In a very few ways I imagine that is true, however ... when one of them is blatantly lying right to your face telling you that water is not wet while some other politico is telling you that water is indeed wet but blah blah blah .... who ya gonna believe huh?

Both dies are generally against the same thing... yet no matter which side is in power the same things keep happening. You are just allowing yourself to get distracted by meaningless details.

Take regulations... both are all for them, and both sides want them to benefit businesses. They just disagree with the process of fooling the citizens. Republicans want to trick their base into believing in de-regulation when the only regulations they are going to remove are the one protecting citizens. Democrats are for regulation, but only enough to give the businesses what they want while working the words to give the ignorant masses the delusion that others are helping.

The monopolies are growing, the regulations are only helping them grow.

What I am telling you is that more of the same is going to happen again. Meaning people are going to complain but actually do nothing because they are going to fall for their tribalism. And because the parties can rely on that... they don't have to be different, they just have to "appear" different and it works!

I am a "porud" Graduate of Smilin' Jim's Unaccredited Forth Grade Academy! High "school" is for Tech Dirt "idiots" who don't even Understand about government "regulations" on Leaded Paint and want to deny me the Delicious, Delicious "paint" Chips that the free Market has "provided".

Re: Re: Re: Microsoft should just charge a low nominal fee

Until people have learned they lost control, they will not take the steps to repair it.

America has developed a very unhealthy troubleshoot the symptom problem. The #1 system is the American people, but they get very upset when you remind them that their government is filled with the people they voted for. And it gets even richer that they think they live in a democracy when it not even factually or descriptively true.

For now, living in a fantasy is what they want, and as along as they keep doing that, they are pretty much cause the problems they keep complaining about. So yea... what do I care? Obviously enough to try to tell a few about the problem. And when I point out that they are part of the problem, they become hostile and pull out the "victim blaming" card.

The people here do a good job bitching, but are failures at taking responsibility.

Re: Re: Re: Re: Microsoft should just charge a low nominal fee

"Until people have learned they lost control"

Many people learned a long time ago that "the people" never had control and they are confused by your attempts at repair. What exactly is not working correctly? It is working just fine for the wealthy and you think they are going to let you rock the boat?

Yes, many want to profit off of treating the symptom rather than finding a cure, but isn't that just what capitalism does? Oh, and the american people have little to do with this.

It is becoming apparent that it you who is living in a fantasy world.

You are part of the problem and yet expend large amounts of energy pointing your finger at others ... who apparently are bitching but your babble is not bitching at all. Got it.

Re: Re: Re: Re: Re: Microsoft should just charge a low nominal fee

"Many people learned a long time ago that "the people" never had control and they are confused by your attempts at repair."

No, they accepted the lie that they have no control, they have always had it. Of course they are confused by my attempts at repair, they are indoctrinated and believe a lot of incorrect things.

"Yes, many want to profit off of treating the symptom rather than finding a cure, but isn't that just what capitalism does? Oh, and the american people have little to do with this."

They have "everything" to do with this. This is not a problem with "capitalism" it is a problem with ignorant and tribal groups of people easily tricked into attacking their own fellow citizens over political tricks.

"It is becoming apparent that it you who is living in a fantasy world."

I grew up poor, and dropped out of high school and zero College. I make far more than 95% of college graduates. While I fully accept that everyone cannot do what I have done, but that is largely because I can read facts and data and understand the outcome without allowing myself to become victim to that same tribal BS you are clearly affected by.

"You are part of the problem and yet expend large amounts of energy pointing your finger at others ... who apparently are bitching but your babble is not bitching at all. Got it."

I am not the one bitching about getting fucked by the successful, I became them. Try learning from them instead of whining about your lack of capability. You, like many others, created your own victim-hood to excuse yourself from your own evidence of failure. It is called the "victim complex" for a reason!

Yes, not everyone can find a paying gig for acting like an idiot on the internet, but I'm glad you found your niche. It's not a sustainable or transferrable skill, but it's nice to see someone with such low skill and intelligence finding a way to make a decent living.

What you do not Understand is that "I" am very SMART. Much more Smart than "you", and also more Smart tna Everyone "here" at Tech "dirt". It is a Burdne, being the only Smart Person "here". Your feeble MIND cannot "imagine "how diffuclut it is to be so Smart.

The reason I am so "Ssmart" is that I read Atlas Shrugged.

Well actually I read the Cliffs Notes.

Well "actually" I Chewed the "corne" of the Cliffs Notes. I dipped them in delicious Leaded "paint".

Both apties are the "Same", for they both Banned "lead" in Paint. As anyone who is Very "smart" like Me and has Chewed the Croner of Atlas Shrugged after "dipping" it in Delicious delicious "leaded" Paint can Tell you, the free Market should "decie" whether there should be Lead in Paint, and also hw we should be allowed to "eat" our Books.

Re: tl;dr

Re: Microsoft should just charge a low nominal fee

Or team up with competitors. Or offer completely opensource solutions. Still, offering free protection for any politician sounds pretty ok. Actually we should be encouraging politicians, candidates and public servants to ramp up security nowadays and surely Redmond and other tech companies could offer advice. Google has virtually stopped attacks by implementing 2FA physical keys for instance. its a valuable contribution.

Re: Microsoft should just charge a low nominal fee

That probably wouldn't change things. There's still a campaign finance issue if a campaign buys things at less than the fair market value. If they charge campaigns less than they'd charge a regular corporation for the service they're still in basically the same legal position.

Still a bribe

Giving a bribe to everyone equally is still bribery. Companies learned the lesson the hard way that buying politicians of one party is no good if they don't win - you have to buy ALL the politicians. Giving away free services is a bribe, even if it's an equal opportunity bribe. As a member mentioned above, MS should be charging for the service.

There are other questions

Why isn't this AccountGuard available to everyone? What does that say about Microsoft? What does that say about whether Microsoft is meddling in politics? What isn't Microsoft telling the world about their AccountGuard program?

Call me cynical, but Microsoft's stated intentions, and their actual intentions have been different in the past.

As to whether it should be considered a campaign contribution, I don't think so, merely by the fact that they are offering it to all campaigns. That it isn't available to anyone else is suspicious in my mind.

Re: There are other questions

Why isn't this AccountGuard available to everyone? What does that say about Microsoft?

If that's really a Microsoft link, it says they don't understand the domain name system and are training their customers to be phished. Why should we expect "microsoftaccountguard.com" to be owned by Microsoft? That should be "accountguard.microsoft.com" so we know.

In unrelated news, everyone should head over to my... err, Microsoft's... new domain, microsoftaccountvault.com, and enter their Microsoft name and password to get the free consumer-version of this service. Like the other link mentioned, it will show no content whatsoever until you reduce your browser's security settings by allowing arbitrary scripts to run.

Amusingly, other sources give the URL https://celalandingapp.azurewebsites.net, which seems like it might be the same page but who knows? It certainly wouldn't be out of character for MS to be hosting pages that phish its own services on their own infrastructure...

Re: "discussions I've seen from platforms" -- SO? Are not the Truth,

Re: Re: "discussions I've seen from platforms" -- SO? Are not the Truth,

> What are you trying to say?

I repeat from above: This is nominally about Microsoft's woes, but that's just cover for his real payload: defending Silicon Valley, especially GOOGLE.

Besides, DOESN'T ACTUALLY MATTER what I write! My viewpoint is discriminated against. -- And personally, since Techdirt and its fanboys so often force me off topic, though indulge themselves, then I DON'T CARE if you clowns think it's off-topic.

Anyhoo, as I was going on: Here's the Wall Street Journal:

> **Tech giants like Google and Facebook always deny that their platforms favor some viewpoints over others, but then they don't do much to avoid looking censorious.** This week a conservative radio host and author is wondering why YouTube classifies his educational web clips as "potentially objectionable" material. But more than 15 videos are "restricted" on YouTube, a development PragerU announced this month. This means the clips don't show up for those who have turned on filtering - say, a parent shielding their children from explicit videos. A YouTube spokesperson told us that the setting is optional and "based on algorithms that look at a number of factors, including community flagging on videos." *Yet it's easy to imagine a flood of users reporting a political video - microagressed college students have a lot of free time - and limiting a viewpoint's audience.*

Re: Anyhoo, as I was going on: Here's the Wall Street Journal:

deny there's no viewpoint discrimination

You have no viewpoint, you have nonsensical spam. We treat it as such.

false sneaky claim it's users choice

It is. I can flag you or unhide your comments if I want to. I use Youtube for entertainment and how-to videos, not to see political crap I don't agree with. Therefore, this is a useful service to me and I can disable it if I so choose. Therefore, user's choice.

And direct on topic: Even Kim Dotcom agrees with ME!

**Twitter, Facebook, Google, you betray your users by helping the Deep State to spy on all, you politicize your platforms to manipulate public opinion, you shadowban, censor and attack free speech. Your tech is easy to replace and your users will leave you. Your days are numbered. - Kim Dotcom (@KimDotcom) August 7, 2018**

Re: And direct on topic: Even Kim Dotcom agrees with ME!

Re: Re: And direct on topic: Even Kim Dotcom agrees with ME!

Well, he is correct about them being collaborators with the US military and its friends. The Snowden documents demonstrated that clearly. Microsoft was first on board with the "Prism" program if I remember correctly.

As for politicisation. I don't know as I don't really use them. My impression is that they just serve shareholders, and if that involves facilitating disinformation campaigns for all sorts of monsters for profit then so be it. But it doesn't seem to be about politics. Just greedy indifference, same as most of the rest of corporate America.

Re: Re: Re: And direct on topic: Even Kim Dotcom agrees with ME!

I'm sorry, did you miss the fact where the OP and Kim Dotcom are both raving lunatics?

Well, he is correct about them being collaborators with the US military and its friends. The Snowden documents demonstrated that clearly. Microsoft was first on board with the "Prism" program if I remember correctly.

And it was also demonstrated that the tech companies were either forcibly conscripted into it (aside from telcos) or there was a discrepancy on the depth of involvement of said tech companies in the leaked documents. Most of those tech companies have vehemently denied that level of partnership and have actively pushed back on government requests. I'm not inclined to subscribe such blatant conspiracy theories based on the mad ravings of two lunatics. Especially since the companies' bottom lines took a massive hit from just the suggestion they were in bed with the government.

As for politicisation. I don't know as I don't really use them.

Then take it from those of us who do. There is no politicization. Merely trying to make the best of a bad, and getting worse, situation. It's not even about greed per se. If you allow everyone to say whatever they want, eventually someone is going to offend, tick off, or rub someone else the wrong way. They are then going to try to get them to shut up. The companies have acquiesced to such demands, the problem with that is, not everyone agrees they should be silenced. So now the companies are stuck in the middle of a bunch of different groups all crying foul for them either doing or not doing something to keep everyone happy.

Re:

Re:

It could be, if otherwise the campaign would have to hire a janitor to clean the restrooms. Then it's basically contributing the janitor's salary and benefits.

Usually it wouldn't be, though, because the campaign would be paying for the use of the building and restroom cleaning is included in the price. It's not a contribution if it's paid for at full price. Though campaigns do have to report expenses.

And some have argued that the case against Trump is significantly stronger than the one against Edwards (in which he was indicted, but after an acquittal on one charge and a hung jury on the rest, the DOJ decided to drop the case).

It should be noted that one of the reasons why the Edwards case was dropped (and why it struggled to convince a jury) is because Citizen's United happened after Edwards alleged crimes, but before the trial, which drastically changed the political campaign landscape.

With how common Super PACs were by Edward's trial, all the money getting thrown at him was no longer so unusual to the jury pool.

What also helped Edwards get off is that the money still kept flowing to cover up the affair, even after it was clear to even the most delusional person that Edwards stood zero chance at winning the party's nomination.

MS security??

I raised some fairly skeptical questions about the complaint with Randazza over email, who responded that he believes that "Twitter and other platforms are attempting to "meddle in" elections" and stated, "Once they figure out who they can ban and who they can't, just watch for it." No offense to Marc, but that sounds fairly paranoid and devoid of any actual evidence.

I think some offense to Marc is warranted. I get the whole "you must protect bad speech so that good speech is protected too" idea. But, even for someone who has adopted that as a strategy, he seems to be going off the rails a bit.